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October 13, 2010

USPTO Adopts New Measure of Patent Examination Quality

Last week, the U.S. Patent and Trademark Office announced that it was adopting new, more comprehensive procedures for measuring the quality of patent examination. The new procedures were developed by a joint USPTO-Patent Public Advisory Committee (PPAC) Task Force following consultation with the patent community and public.

Under the new system, seven aspects of the examination process will be assessed to yield a composite quality metric. The seven aspects include two patent examination quality measures that the Office says were used previously -- the final rejection and allowance compliance rate (the correctness of the examiners' overall determination of the patentability of the claims) and the in-process compliance rate (the quality of the actions taken during the course of examination) -- along with five additional new measures:

• The use of best search practices in the examiner's initial search for prior art,• The use of best examination practices in the first action on the merits,• Trends in compact and efficient examination as reflected in aggregate USPTO data,• The perceptions of applicants and practitioners as measured by surveys, and• The perceptions of examiners as measured by surveys.

In a press release announcing the change, the Office said it will periodically disseminate the results of each measure (at least twice a year), along with the aggregate data used in their calculation to the extent practicable, on the USPTO website. A detailed description of the new procedures, which will be implemented for fiscal year 2011, can be found here.

Comments

Don,
You state that “the final rejection and allowance compliance rate (the correctness of the examiners' overall determination of the patentability of the claims)” were used previously.

This statement is factually incorrect. The USPTO had not measured or published previously the final rejection compliance rate. It focused only on final allowance compliance rate. This fundamental asymmetry led to the ‘reject, reject, reject’ policy with staggering rejection error rates as I discuss in detail in my paper at http://bit.ly/MIBJ-PTO-Reform and my comments in the USPTO proceedings on Examination Quality at http://j.mp/Exam-Qual-Comments.

I regard the new inclusion of rejection error compliance measure as the major significant advance of this new quality system. These steps certainly go in the right direction to balance and improve the incentive structure in the examination process.

These new metrics should provide a helpful means of countering assertions by some of those in the anti-patent crowd who mistakenly insist on equating increased patent issuance with decreased patent quality. USPTO Director David Kappos has implemented some creative programs and pragmatic approaches that appear already to have gone far in improving efficiency and morale at the patent office. He appears to have earned the high opinion in which he is generally held, and he deserves credit for his accomplishments.http://www.fastcompany.com/1693197/why-apple-could-pay-more-than-625m-for-cover-flow-patent-infringement